Memeorandum

May 17, 2006

You Fish, I'll Hold The Rod

Judge Walton, overseeing the Libby pre-trial maneuverings, agreed to review notebooks from TIME and the NY Times to see whether any of the material was relevant to Libby's defense. E&P has coverage, as does the WaPo.

This is actually a reasonable result. The Team Libby request for full access to the notebooks did have the look of a fishing trip, albeit to a well-stocked pond. Evidently the judge decided to take seriously the possibilty that something in the notes could be relevant to the defense.

The judge also
indicated the defense will be limited in attacking Wilson, if Libby
calls him as a witness at trial as his lawyers vow they will. Walton
said it is irrelevant whether Wilson was right or wrong in his
criticism of the administration.

What matters is that Libby and the White House were determined to respond to Wilson's accusations, Walton said.

One might have thought that the motivation behind the Administration's response to Wilson was an underlying issue in this trial - if they were responding to Wilson because they believed he was, objectively, wrong, that might suggest something different from a response motivated by the belief that he was politically problematic. "They were trying to refute him" is different from "they were trying to punish him".

Comments

Walton said it is irrelevant whether Wilson was right or wrong in his criticism of the administration.

Let me get this straight. Fitz will introduce Wilson's criticism, which amounts to calling Administration officials in general (and Libby's office in particular) a bunch of liars, and Libby (who just happens to be on trial for lying) will be unable to respond? And then we'll repeat the process five times for the slower jurors? Why don't we just hang the guilty bas***d now, and save everyone some time? I don't think you have to be a legal scholar to figure this one out . . . you just need a little common sense.

Maybe. He hasn't written his order yet..And we haven't seen quite how he will apply this effort to keep the case away from a debate about the war.

Now, an important part of Libby's defense will be that the Wilson charges were not only false but exceedingly damaging and that , not personal animus, was his focus. Perhaps a short visit to the stand by Senator Robertson and a copy of his minority report comments about Wilson will do.

Still don't see how that's relevant to whether or not Libby lied. If Wilson revealed something truthfull that damaged the administration's credibility why would Libby's pushback have been any different? Wilson warrented a response either way. No?

No. If Wilson was being truthful, the administration would have just tried to weather the fallout. Just as they have done every other time when someone truthfully says something about the administration. This is the least 'fight back' administration I've ever seen.

If there was clandestine, illicit plan to punish Wilson, then it is more likely that people would lie about their role in such an nefarious plot.

But if there was plan to counter a critic's outright falsehoods, then the idea that Libby simply "mispoke", "got the date wrong and the people wrong", "as if for the very first time" gains traction, since there is not much reason to hide such a plan.

I'm thinking like Ed. It's not important that Wilson lied about Iraq and it's not important that Libby was motivated by the desire to set the record straight ('in addition to' or 'instead of,' take your pick, dealing with a political problem). What's important is (to the extent that anything is important in this inquisition), did Libby lie to the prosecutor when he said...whatever it is he said that Fitzgerald says is untrue with intent to mislead.

What's significant to me is that Libby apparently beat back Fitz' effort to sneak in the "whistleblower" business by the introduction of false news articles--though we await the Judge's order.He's got the Judge aware of the razzle dazzle effort.And that the Judge will review the reporters' notes as he is reviewing the referral letter.

In one case the reponse would be to tell the truth; in the other, the only possible response would have been personal (since the truth wouldn't work). He's on trial for lying about a personal response. It's material.

Chants, why is it unthinkable that Libby may have gone too far in pushing back against a lie?

But if there was plan to counter a critic's outright falsehoods, then the idea that Libby simply "mispoke", "got the date wrong and the people wrong", "as if for the very first time" gains traction, since there is not much reason to hide such a plan.

The logic here is A lies about B. B pushes back by offering details about A but gets some details wrong because they're not really focusing on telling the truth about A?

It can't be "We didn't care that much and lost focus because they were lies anyway." That would be incompetent.

Anyway, according to Sue that's the response if Wilson was telling the truth.

My own feeling is that had Wilson be lying, Cheney could have come out with a press conference refuting the charges head on. Of course then the scrutiny would have been on Cheney and his actions too, not just Wilson. The beauty of a whisper campaign is that one can throw whatever on the other guy without having to respond to substantive charges.

But the personal matter was the truth. It just happened that in this case telling the truth about Wilson meant getting personal. It negates the relevance of Wilson's story being true. Fact or fiction, Libby's pushback had to get personal as that was the circumstances surrounding Wilson's trip.

And the Administration had advance notice of what Wilson was saying. Cheney knew well in advance who Wilson was.

Heh, heh. Probably why Fitz said in the recent hearing:

We're not contending that the vice president or Mr. Libby knew about the trip before May of 2003. To the extent that Mr. Libby was telling reporters look, the vice president didn't send him on this trip, we will be agreeing with the jury. The vice president didn't send him on the trip. Mr. Libby didn't send him on the trip. The vice president and Mr. Libby didn't know about the trip until-- [emphasis added]

But the personal matter was the truth. It just happened that in this case telling the truth about Wilson meant getting personal.

The personal matter was the truth, but not part of the pushback. Which is why the Defense wants to introduce evidence of the strategy meetings for the pushback, and the substance of the other conversations (of which Plame was either a minuscule part, or entirely absent), and the Prosecution wants to keep all that stuff out.

Team Libby has already indicated a defense strategy, which goes something like this:

Libby was continuously engaged and occupied with many many important substantive matters, of which rebutting Wilson's falsehoods was but a small part. Wilson made multiple false statements, and the employment of his wife was but a small corroborating detail in the true story (Wilson sent by wife & her cronies) which rebutted only one of Wilson's falsehoods (Wilson was sent by Cheney.) While Libby does not dispute that the wife trivia probably was mentioned a couple of times in official contexts, he ignored it until he was told by a journalist that all of the journalists knew who Wilson's wife was and that she sent him to Niger, because the journalist thought that it was important enough to mention. After that, it was associated in his mind as something "that all the reporters knew" and so when other reporters who already knew asked about it, he said that he had heard that, too.

Ok, fine, reasonably coherent story, and that's what he told the FBI and the grand jury. He has been indicted on the grounds that he must have been lying because he could not have possibly ignored the wife detail, because it was the most important thing that was on his agenda. Fitzgerald's main strategy has been to attempt to prevent the jury from finding out any of the other non-Wilson things he was occupied with, and also all of the other Wilson rebuttals that he was occupied with.

But Walton does seem somewhat on to Fitzgerald's game, and Team Libby certainly is. He won't get away with it without resistance every inch of the way.

Prosecution wants their narrow view to rule the day but everyone knows life and situations are much more complicated than that. The little case Fitz is so fond of presupposes that he buys into the smear the whistleblower campaign and he is dead wrong on that.

Jack Murtha on Hardball accusing our soldiers of deliberately targetting civilians. Is he senile or what? this is just slander and he should be ashamed to be making these baseless fictitious allegations.

Exactly my thoughts, Cathy.Somehow between making this a case about the was and making it about a vicious blowback against a truthteller, Walton wants to let Libby keep out prejudicial crap that Fitz wants to razzle dazzle in and still let Libby make that defense. And I think we'll see more when we get his order.

To date Libby has scored 2 wins though you'd never guess it from the reports(1) the judge got and will review the referral letter. If there's anything fishy in their, Libby gets it;(2) the Judge will review the journos' notes. If there's any impeachment evidence or evidence of other sources, he might well get that, too.

Finally, as this is discovery, Libby knows Cooper and Russert have no contemporaneous notes evidencing their testimony.

""The judge also indicated the defense will be limited in attacking Wilson, if Libby calls him as a witness at trial as his lawyers vow they will. Walton said it is irrelevant whether Wilson was right or wrong in his criticism of the administration.

What matters is that Libby and the White House were determined to respond to Wilson's accusations, Walton said.""

As one who has no problem with a conviction of Libby on something, let me declare how utterly ridiculous this ruling is. Walton soooo much wants a conviction. How is it not "relevant" the reasons why Libby thuoght he should respond.

Fitz was so pro-Wilson a while back. Then he flipped when he said he didn't care if Wilson told the truth or not. I sensed Walton was going to bar any discussion of Wilson's trip but Fitz said he was going to introduce the Times op-ed by Wilson.

Fitz needs to keep out Wilson's leaks to the US and UK press before the Times op-ed. Libby and others were responding to those but they are damning to Wilson.

Walton so very much wants a conviction. He'll probably even jail Libby's lawyers if they dare mention UGO in front of a jury.

I so very much wanted to see a robust trial. A prosecution of Libby, a liar, for lies, based on the testimony of reporters, generally liars, on what they recall from a discussion months or a years before, and peppered with an interrogation of Wilson, whose leaks were lies, and the basis of this prosecution for lies.

"Wilson claimed:
he was sent at Cheney's behest;
the intelligence didn't support the Administration's position; and,
that Cheney had to know about it."

It's worse than that. Take the propaganda flak Joe was dishing before his Times op-ed, and which he sensibly did not put in it. He was leaking that he disproved the forgeries and Cheney, et al. new it. This was leaked to the Times, Wash Post, UK Independent and repeated everywhere. It was part of his build up to his coming out.

It's delayed. After a day or two of festive Rovanalia the left wing lemmings might get feisty an take a peak on the immigration "reform" their leaders are perpetrating for "The Man". Can't let that happen. Some of them are smart and stuff! Keep them focused on Rove. ROOOOOVVVVVEEEE.

How can you be certain of motive on Walton's part? The 'evidence' in question comes from journos - you know, the lying lizards who wring their spit out of the flag as they wrap themselves in it.

I'm rather curious as to whether the journojackals in question will respond quietly or whether we're going to be treated to editorial blather concerning the sanctity of journos notes as repositories of that famous "first draft of propaganda".

TeamLibby gets a win from me on this. Walton can hold the pole and if the rest of the journos take notes like Miller does, I wish him luck.

Has anyone come up with an appropriate nickname for "24 business hour Leopold" as yet?

Everything told to reporters involved Wilson being sent by his wife, the NIE and the lack of knowledge on the part of Cheney.

Everything?

From the WaPo:

Jeffress also said that to counter the suggestion that Libby was heavily focused on the Wilson-Plame link, he plans to call six journalists to testify at the trial, each of whom will report that during their conversations with Libby about Wilson in 2003, he never mentioned Plame's name.

Six no-leaks, Miller got a leak from Libby, Cooper leaked to Libby. "Everything".

First off, I'm amazed that Judge Walton hasn't been attacked by the Dems. He was appointed by George W. Bush on Oct 2001.

Second, I think people are jumping to conclusion about Judge Walton. He says that were not going to prove if Wilson was right or wrong. For the most part this is irrelevant, but on the other hand, when Wilson is on the stand he doesn't get to argue about how great he was yada yada because this is irrelevant. Luskin et al can claim whatever they want in the opening/closing and Fitz can't bring evidence to counter, no matter.

This has a three-fold effect: 1) I don't think this hurts Libby at bit, 2) it keeps the trial short, 3) it will less likely confuse the hell out of the jurors with too much stuff.

Keep in mind, especially on point 3, this is DC, and the judge was already worried about whether the members of the jury pool will be able to read.

"It's not important that Wilson lied about Iraq and it's not important that Libby was motivated by the desire to set the record straight ('in addition to' or 'instead of,' take your pick, dealing with a political problem). What's important is (to the extent that anything is important in this inquisition), did Libby lie to the prosecutor when he said...whatever it is he said that Fitzgerald says is untrue with intent to mislead."

Ultimately you are right, what is "important" is what Libby is narrowly charged with. But "important" is not the same as "relevant". A lawyer should be allowed to present the context of the case. Further, exploration of relevant issues might lead to facts that are "important" in some way unknown or unclear before a trial.

If Fitz didn't know there was a problem with Wilson his position wouldn't have changed. That's a perogative of the prosecutor - he tries to put on his best case. But a jury should be given context.

The arguement you made works equally for criminal conspiracy for Plame and the Directorate of Operations. 'The plan may have been to counter a critic, counter a critic by dubious/underhand means, while at the same time not realizing at that time that the plan was illicit.'

The war was seen as 'inevitable' and the intent would be to use Bush befroe and after the war started.

"Jeffress also said that to counter the suggestion that Libby was heavily focused on the Wilson-Plame link, he plans to call six journalists to testify at the trial, each of whom will report that during their conversations with Libby about Wilson in 2003, he never mentioned Plame's name."

Maybe that's a reporter's misundertanding. Naming six would make it seem he was so focused. I think it goes to the issue of "Wilson's Wife" vs. "Plame". A lot of the talk early on was who told Novak "Plame"...if anyone did.

"How can you be certain of motive on Walton's part? The 'evidence' in question comes from journos - you know, the lying lizards who wring their spit out of the flag as they wrap themselves in it."

Well I'm thinking why the urge to keep the context of Wilson out, no matter how confuing my posts might be. As for the reporters I don't see Average Joes having the assumption they are truth-tellers by act of their profession, quite the opposite. You're right.

"I'm rather curious as to whether the journojackals in question will respond quietly or whether we're going to be treated to editorial blather concerning the sanctity of journos notes as repositories of that famous "first draft of propaganda"."

Yes. And I'm curious too why Judith Miller isn't being indicted for perjury. Libby set out a specific date when he had a conversation with her, and she denied it occured. Isn't some of what Libby is charged with essentially the same?

"Has anyone come up with an appropriate nickname for "24 business hour Leopold" as yet?"

Rich and wealthy. His site gets repeated hits by those obsessed with Rove. Ads on his page get hits, he scores!

"Did you read the five articles (plus Novak's "outing" one) Fitz wants to introduce? I think it blows a gaping hole in SS Libby, well below the waterline."

I'm confused. Didn't Fitz want to limit the papers to just the Times op-ed?

Those earlier articles are damning to Wilson - if Wilson is allowed to be asked about his part in them. However as they sit otherwise, they are long speculative and often wrong part of the rumor mongering about the beliefs about WMDs. I don't see how they do anything against Libby except if to pin him somehow on the intelligence mistakes. Libby should introduce the Senate Intelligence Report.

Agreed - that's why I don't think motive is necessarily applicable in his decision. I have an alternative theory concerning the trial date and its relationship to the coming election but after reading his previous concoctions I would tend to think that Judge Walton has surpassed the pinnacle of his capabilities. I would imagine that the appellate leg of TeamLibby is already billing nicely.

Maybe, Rick, but I have been in many preliminary hearings where I was concerned about the judge's off hand remarks only to find that after he'd read the papers and written his order, he was a great deal more sensible.
Plus, remember we are going on news reports, not the transcript.
Wait and see.

I'm confused. I was under the impression that if a government employee is called to testify and they are a "target" they must be informed because it changes their status as a witness to some degree. Am I wrong about this impression? How could someone's attorney be wrong about whether the client he is representing is or is not a "target?"

I think a "target letter" must be given by federal prosecutors called before a gj to warn him that is a suspect and may be charged with a crime to alert him that he can exercise his Fifth amendment rights and refuse to testify.That is that there is already in the prosecutor's mind enough evidence to believe there is reasonable basis to charge him with a crime.

I was referring to his previous order but I do take your point on waiting. 'Druther consider an appropriate appellation for Leopold at any rate.Pejoratives beginning with 'L' aren't lacking but alliteration may be uncalled for in his case.

I don't think everyone gets a target letter before indictment if that's your question. The Department of Justice has special policies when the subpoenaed person is either a “target” or a “subject” of the grand jury investigation. A “target” is someone the prosecutor or grand jury has substantial evidence to link to a crime, and who, in the judgment of the prosecutor, is likely to be indicted. A “subject” of a grand jury investigation is someone whose conduct is within the scope of the grand jury’s investigation.

Due to the potential for unfairness and misunderstanding in making a person who is likely to be indicted testify or produce documents before a grand jury, prosecutors must first attempt to get the target to voluntarily appear. If that doesn’t work, the prosecutor must get the approval of the grand jury and the United States Attorney or the responsible Assistant Attorney General in order to issue a subpoena.

In deciding whether to subpoena a target, prosecutors will consider the importance of the testimony or information sought, whether the prosecutor can get the testimony or information from other witnesses, and whether the answers to the questions the prosecutors and grand jurors intend to ask would be privileged.

If the target of a grand jury investigation is subpoenaed, it’s the policy of the Department of Justice to advise the witness of his or her rights, either by attaching an “advice of rights” form to the subpoena or in a letter than accompanies the subpoena. In the case of a witness who’s the target or subject of the investigation, the following advice is provided: “The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: [the general subject matter of inquiry, for example ‘conducting an illegal gambling business in violation of 18 U.S.C. Section 1955’]. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire.”

Targets are also advised that their conduct is being investigated for possible violation of federal criminal law.

Q: Does anyone have to tell you at a grand jury hearing that you’re being indicted? Is it legal to indict a person without their knowledge or representation?

A: There isn’t a requirement that you be advised ahead of time that an indictment is going to be returned against you. Grand jury proceedings are considered secret. In general terms, this means that the authorities aren’t allowed to reveal what happens before a grand jury.

If you’re a “target” (loosely defined as a person against whom the government has evidence of an involvement in a crime for which you may be charged) or a subject of a grand jury investigation, the government may want to question you about your involvement in the crime under investigation. In that case, the United States Attorney’s Manual requires federal prosecutors to advise you in writing of your right to counsel and to use your privilege not to incriminate yourself if you so choose. < a href="http://72.14.209.104/search?q=cache:H2rdkRL8j7oJ:www.lawyers.com/lawyers/A~1001633~LDS/FAQ%2BCRIME%2BFEDERAL.html+target+letter+when+used&hl=en&gl=us&ct=clnk&cd=2">target letter

Is it not time that the alleged "punishment" of Wilson and Plame was actually delineated.Since this is supposed to be one of the principle driving forces involved in the push back,how can it just be left as some abstract perception,a given that nobody questions?

If something Rove said before the gj supplied additional evidence since his last appearance (I don't recall any other witnesses since then)he could be indicted with no such letter. But I doubt that is the case.

Additionally, given his position, I'd expect the prosecutor would give him informal notice of an inditctment before a public announcement.

Clarice -- do you think it conceivable that someone as high ranking as Rove would be a "secret" target and that his attorneys would not know it? Would a prosecutor go after someone this high ranking and not protect his own case by making sure the subject/target had all the protections the law allows? It doesn't make sense to me.

Clarice if I recall Libby's indictment, I believe the AG was notified several days before and that Fitz talked with the President's lawyer the morning of the indictment to let him know that Libby was being indicted but Rove was not.

Cheney knew in advance (of Wilson's article in NYT) who Wilson was and what he was saying.

No kidding. (Early June appears to be the date.) Wilson claimed he knew in advance of the SOTU. Which was false.

Those earlier articles are damning to Wilson - if Wilson is allowed to be asked about his part in them.

They are only damaging to Wilson if the reader knows his assertions were false. Most Americans think that stuff is all true. (And DC jurors will likely be on the extreme left end of the distribution.) All the articles repeatedly claim Cheney and those working for him are liars. How do you think that'll play in a trial to determine if Libby lied?

Also, how does the Novak piece hurt him?

Even the Novak piece implied the Administration lied. But that one really doesn't hurt him (unlike the other five, which are grossly prejudicial), and I didn't mean to imply that it did.

I would imagine that the appellate leg of TeamLibby is already billing nicely.

I think so too. I appreciate Clarice's point about Walton's rulings shifting, but some of his statements appear to show a serious disconnect, and so far he looks to be running with those. We'll see.

"Fitzgerald's main strategy has been to attempt to prevent the jury from finding out any of the other non-Wilson things he was occupied with,"

The media circus,CIA referal and idictment have all been about elevating the importance of Plame from the bozette who recommended Joe for the trip to Niger to St Valerie.You have only the CIA's word for that status.
In fact it will have taken quite a while for the names Wilson and Plame to be connected certainly there would only gradual awareness rising out of the general chatter of government.

Clarice,
Those "lock downs" every night at lights out must be seared,utterly seared into his psyche,no wonder it is so convincing to those who are unaware that lawyers don't have lock downs,their clients do.Lawyers have lunch.

CT I appreciate Clarice's point about Walton's rulings shifting, but some of his statements appear to show a serious disconnect, and so far he looks to be running with those. We'll see.

Agreed. Although in the May 5 transcript it looked to me like what Walton wasn't "getting" was what Fitz intends to put into his case.
It will be interesting to see how he limits Fitzgerald vs. how he limits Libby. I get the feeling he doesn't want EITHER one of them to try the war, not even to slip it in "not for the truth of the matter".
We'll see.

I can't imagine those articles are coming in. Fitz had some bafflegab in his papers about news articles, Libby's team said they wanted to see them not, J. Walton told Fitz to provide them so he could see what they were and made up some cockamamie story about how he needed them to establish motive (in other words when it comes to the defense he wants them restricted to the small case while he uses razzle dazzle to make the prosecution a big case.) I doubt it he'll get away with that..

Great comments on why those articles would hurt Libby despite the Wilson content.

Thanks. I think the jury demographics are absolutely critical, and often get lost in the discussion of legal machinations. The two most telling moments of the last hearing were these:

Walton: I don't know if that's a battle you want to fight before a District of Columbia jury.

Wells: I've got a tough haul in front of this jury and I need paper.

I can't imagine those articles are coming in.

Perhaps not. But from Walton's comments, he appears to believe that redacted versions would be admissible:

THE COURT: I may not let that in. They may have to redact those in some way so that only certain portions come in that would support their theory of what the motive is. I don't think I'd be inclined to let them bring in an entire article if parts of those articles don't really relate to what the motive was, i.e., the outing, and somehow would be prejudicial to Mr. Libby.

I'm having a hard time seeing how they could be sensibly redacted to remove the bits about lying administration officials.